Executors are responsible for administering a person’s estate after their death. They have a fiduciary relationship with the estate’s beneficiaries, meaning they owe a duty to act in the best interests of the estate beneficiaries and in accordance with the deceased’s instructions in their will. They typically have a range of duties, including taking stock of the deceased’s assets and debts, valuing the deceased’s property, as well as reporting to the beneficiaries and obtaining their approval for distributing the assets.
This article looks at some options for dealing with a problem executor. We also take a look at a recent case before the Supreme Court of British Columbia in which the executors commenced court proceedings seeking to remove each other, to allow the administration of the estate to move forward.
Is it possible to remove a problem executor?
It is possible to apply to the court to remove an executor. For example, they may be removed where their acts or omissions endanger the estate’s assets or they demonstrate a lack of honesty, reasonable fidelity, or the proper capacity to execute the required duties.
While the mere existence of friction between the executor and a beneficiary is usually not sufficient to justify the removal of the executor, where there is dissension among the executors themselves such that the estate administration grinds to a standstill or otherwise hampers proper administration, the courts are able to remove one or more of the executors. In this case, misconduct by the executor is not necessarily required.
What else can be done to deal with a problem executor?
If removing an executor is not the appropriate solution, it is possible to ask the court for another type of order. For example, it is possible to apply to the court to try to force the executor to discharge their duties, in the event that the executor is unreasonably delaying the administration of the estate. The executor may also be liable for losses suffered by the estate due to the delay or in the event of executor misconduct.
Furthermore, under section 86 of the Trustee Act, an executor is able to apply to the Supreme Court for the opinion, advice or direction of the court on a question respecting the management or administration of the assets of a will-maker.
Father dies; three children executors can’t agree on how to administer the estate
In Fuller v Fuller, the three adult children of the deceased were the executors of his estate. Their father died in 2015, leaving behind a house in Nanaimo. His will divided the residue of his estate equally between the three children. It also granted them the “uncontrolled discretion” as to when and how the estate should be realized, including selling any part of the estate that did not consist of money.
In 2017, executor Susan stopped communicating with her siblings David and Katherine. Susan raised concerns over the management of the estate, such as the fact that the substantial increase in the property’s value would now trigger a capital gains liability for the estate and the property is the only means by which that liability could be paid. She also alleged that David has lived in the house from time to time and is not motivated to finalize the estate because he wants to purchase the property.
On the other hand, David and Katherine argued that David had maintained the property since their father’s death at a cost to himself of $80,000. David claimed that he has been seeking to purchase the property, but it has not moved forward due to Susan’s uncooperativeness.
Executors seek to remove each other to resolve the deadlock
In 2021, Susan filed an application to remove David and Katherine as executors. They in turn filed an application seeking to have Susan removed.
As part of Susan’s response, Susan proposed an alternative to the court giving directions on the sale of the property. Her proposed directions included that a specific appraisal firm be jointly retained to provide an appraisal of the current market value; claims for expenses incurred on behalf of the estate be submitted within 28 days and paid with the consent of all parties or pursuant to a court order; and David be able to purchase Susan’s interest in the property by paying her one-third of the appraised value, or otherwise the property be listed for sale.
Court does not remove executor; agrees with the proposed directions
Justice Schultes thought that the estate had languished too long without being wound up and the necessary steps needed to be taken as promptly as possible. The parties were incapable of the level of communication and cooperation necessary to carry out the steps among themselves.
His Honour did not agree that removing Susan as executor was the appropriate solution. Although David intended to buy the property, his Honour considered that David’s proposed approach of relying on an existing appraisal and reimbursing David’s expenses out of the sale proceeds would inevitably lead to further conflict. For example, given the fact that Susan was motivated to find a high appraisal and David a lower one, a joint appraisal was required.
His Honour was satisfied that an order containing the directions sought by Susan should be granted.
Contact Meridian Law Group in Vancouver for Representation in Executor Disputes
Meridian Law Group’s talented estate litigation lawyers develop effective, out-of-the-box legal strategies for clients involved in executor disputes and are a commanding presence in the courtroom. Through strategic and decisive legal action, the firm delivers results for executors and beneficiaries while reducing conflict and cost to the estate whenever possible.
For over three decades, the lawyers of Meridian Law Group have developed a reputation for legal excellence and exceeding client expectations. The firm is located across from the courthouse in downtown Vancouver and proudly represents clients throughout West Vancouver, North Vancouver, Coquitlam, Penticton, Kelowna, Richmond, New Westminster, Burnaby, Surrey, Langley and White Rock. To arrange a confidential consultation for your estate matter, please call 604-687-2277 or reach out online.
